Opinion
Civil No. 09-5204-RJB-KLS.
November 4, 2009
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge Karen L. Strombom. Dkt. 16. The Court has considered the Report and Recommendation, objections, if any, and the record herein.
The Report and Recommendation thoroughly discusses the facts and law at issue here. Dkt. 16. After conviction of assault in the first degree by the Pierce County Superior Court, the petitioner was sentenced to life without possibility of parole under Washington State's Persistent Offender Accountability Act. Id. Pursuant to 28 U.S.C. § 2254, the petitioner filed a petition for writ of habeas corpus, challenging the legality of his sentence on the following grounds: "Mr. Moody was denied his Sixth Amendment right to effective assistance of trial and appellate counsel when both counsel failed to argue the lack of 'comparability' of Moody's two foreign convictions based on the differences in the available defenses." Id. at 3. There appear to be no issues of failure to exhaust state remedies with the petitioner's claim. Id. at 4.
The Report exhaustively details the petitioner's argument regarding ineffective assistance of counsel and the state court holdings on direct appeal and on personal restraint petition. Despite the petitioner's arguments to the contrary, the court agrees with the Report that the Washington State Court of Appeals determined that the petitioner's prior out-of-state convictions were comparable to the Washington offense of second degree assault. It is this court's opinion that the quoted sections of the Court of Appeals decision were not dicta, as the petitioner argues, but rather were a determination on the record and support for the court's ultimate holding. As such, there is no reason to certify the issue to the Washington Supreme Court. The Report is based on a final state court ruling concerning state law, and the petitioner cannot show a reasonable probability that the outcome of his proceedings would change without the alleged defect in counsels' performance. The Report should be adopted.
STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY
The district court should grant an application for a Certificate of Appealability only if the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000) ( quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
Although this court agrees with the Report that the petitioner's argument regarding comparability was expressly rejected by the Washington State Court of Appeals, the issue presented deserves encouragement to proceed further. A Certificate of Appealability should be granted.
The Court hereby FINDS and ORDERS:
1) The Report and Recommendation (Dkt. 16) is ADOPTED;
2) The petitioner's request to certify the comparability question to the Washington Supreme Court is DENIED; and
3) The petitioner's motion for a Certificate of Appealability is GRANTED on the following issue:
Whether the petitioner was denied his Sixth Amendment right to effective assistance of trial and appellate counsel when both counsel failed to argue the lack of 'comparability' of the petitioner's two foreign convictions based on the differences in the available defenses?
The petitioner is invited, if he so wishes, to file a proper motion with the court by November 13, 2009, for the appointment of counsel. The Clerk is directed to send copies of this Order to all attorneys of record and to the Hon. Karen L. Strombom.